Storey v. Storey , 23 Ill. App. 558 ( 1887 )

Moran, J.

The only question presented is whether the decree of divorce in the ease of Maria P. Storey v. Wilbur F. Storey in directing that said Wilbur F. Storey “do henceforth pay or cause to be paid to and for the use of the said complainant for so long as she may be and remain sole and unmarried the sum of $2,000 per annum,” created an obligation which bound the heirs of Wilbur F. Storey to the payment of said sum or charged his estate therewith after his death. The language quoted from the decree is the order of the court “on the question 'of alimony and maintenance of” said Maria P. Storey, and the sum to be paid annually is strictly alimony.

“ Alimony in divorce law is the allowance which a husband pays by order of court to his wife while living separate from him for her maintenance.” 2 Bishop, M. and D., Sec. 851. As to. its continuance after the husband’s death our Supreme Court says: “We know of no case in which it has been held to be a debt continuing after the death of the husband and against the heir, but directly the contrary was held in O’Hagan v. O’Hagan, 4 Iowa, 509, and as we think upon sufficient reason.” Lennahan v. O’Keefe, 107 Ill. 620. It is contended by appellee that it was in the power of the court, under our statute, to decree alimony in such manner as to charge the payment of it on the estate or on the heir after the husband’s death, and that the term, “so long as she may he and remain sole and unmarried,” is to be construed to extend the payment for her natural life, provided she remain sole and unmarried.

We can not assent to this view. By the terms of the decree the right to alimony would cease upon the marriage of appellant, but if she remained sole her right to the alimony would continue as long as the' duty to pay alimony subsisted, i. e., during the life of the husband. The terms of the decree limit her right if she should marry, but do not enlarge the husband’s obligation.

Assuming the power of the court to be as broad as counsel contends, the terms of the decree, in our opinion, therefore, fall far short of charging upon the heir the duty of paying the specified sum per year as long as appellant shall remain sole.

Upon the death of her husband, she having obtained a divorce for his fault, became entitled to dower in his property. To give her alimony in addition, the intention must be plainly manifested in the decree.

“In the absence of language showing unequivocally#that the intention was to bind the heir by such a decree, we are of opinion that it does not do so, but that its life terminates with the life of the defendant.” Lennahan v. O’Keefe, supra. In Stratton v. Stratton, 77 Me. 373, cited and relied on by counsel for appellant, the decree provided that the husband should pay to the wife “during her natural life an annuity of §250, to be paid quarterly in advance.”

Here are unequivocal words, which would seem to justify the conclusion of the court that the annuity did not cease at the death of the husband; but whether these words, without more, would be held sufficient in this State to establish affirmatively and unequivocally an intention to charge the heir, we think somewhat doubtful under the intimations given by our Supreme Court.

It is argued that this portion of the decree fixing the alimony was by consent, and that therefore it was an agreement on the part of Wilbur F. Storey that appellant should be paid the amount as long as she should remain sole and unmarried, and that by the bond given to secure the decree, Storey refers to this order as follows: “ Which said order and decree, and the terms thereof, the said obligor hath agreed and doth hereby agree to stand to,” etc. -

The decree is not an agreement between the parties and does not purport to be. It does appear that it was entered by the consent of the parties, but that fact can not affect the construetion of it. The language of it must be given the same effect whether it was assented to by the parties or entered by the court against the objection of one or both of them.

As to the bond, it but secures the performance of the decree as entered. It in no manner enlarges the decree or changes its significat!- ¡1.

We are of opinion that the Circuit Court committed no error in entering the decretal order appealed from, and the same will therefore be affirmed.

Decree affirmed.